David Foster commentary: Three-fifths deal was a step toward freedom

Sunday

Jan 30, 2011 at 12:01 AMJan 30, 2011 at 10:57 AM

When congressional Republicans read aloud the U.S. Constitution recently, they sparked controversy by leaving out the parts superseded by amendments. The most important omission was the three-fifths compromise, where to apportion representatives and direct taxes, the Constitution originally added "to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

When congressional Republicans read aloud the U.S. Constitution recently, they sparked controversy by leaving out the parts superseded by amendments. The most important omission was the three-fifths compromise, where to apportion representatives and direct taxes, the Constitution originally added "to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." By leaving out these words, it looked like the Republicans were trying to hide that the Constitution condoned slavery. For, according to a very common reading, the three-fifths clause declares that slaves are worth only three-fifths of a person. And this seems to make the Constitution fundamentally racist.

Widespread though it is, this is a profound misreading. As paradoxical as it may seem, one can hold both that the three-fifths provision accommodates slavery and that the Constitution is not racist.

It seems obviously racist to count a slave as only part of a person. But when the Constitution was being drafted, it was Southern interests that argued for counting slaves fully as persons. This would have maximized Southern power in Congress, because the Constitution determined only the number of representatives, not who those representatives would be. The Constitution let each state determine how its representatives would be chosen, so a state could count slaves to determine the number and then send only white slaveowners to Congress. In this context, to count only three-fifths the number of slaves rather than the total number actually diminishes the power of the pro-slavery faction in the national government. This strengthened the part of the country that was opposed to slavery - to the advantage of the slaves themselves.

As Frederick Douglass put it, the three-fifths clause "is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. ... Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of 'two-fifths' of political power to free over slave States. ... Taking [the clause] at its worst, it still leans to freedom, not slavery; for, be it remembered that the Constitution nowhere forbids a coloured man to vote."

Given the realities of the times, the less slaves counted in representation, the more powerful the North would be in Congress; at the same time, the less slaves counted, the less likely the South would agree to the Constitution, especially since slaves also counted for taxation. Suppose only compromise would secure the union of North and South, was a union in the interest of the slaves? Or would the slaves have been better off if the colonies had split into two or more nations?

There can be no doubt of the answer: Freedom depended on establishing the union. Had two states emerged, one free and one not, slavery would have lasted much longer than it did. The North fought the Confederacy partly to end slavery, but it prevailed partly because it was sustained through the bitter fight by a powerful passion for union. In the two-nation scenario, that passion would not have existed. Furthermore, it is extremely unlikely that the North would have gone to war to free slaves in another country. Even if it had, its resolve would not have been strengthened by arguments in favor of a union. Therefore, if the three-fifths compromise was essential for forging one United States, it was essential for eventually freeing the slaves.

Even the locution other Persons served freedom. These words avoid enshrining in the fundamental law of the land the word slave or Negro or any similar identifier. This means that black people could count fully for representation without the need to amend the Constitution. All it takes to move a black person from slave to free is a change in state law, and if black people were free in any state, as they were in the Northern states, they were full citizens under the Constitution. Thus, while the language of the Constitution allows the South to support the document, it also makes changes in the direction of freedom as easy as possible; it is no blot on the Constitution that the states did not use this opportunity.

Far from being morally obtuse, those who drafted the three-fifths clause displayed a high statesmanship informed by a passion for freedom. Next time, let's read the whole Constitution, and hope that by then both Republicans and Democrats will have learned to appreciate its genius.

David Foster is an associate professor of political science at Ashland University and a fellow of the Ashbrook Center.

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